A Problematic Article on Prison Reform in n+1 Magazine

n+1 magazine has this article arguing for prison abolition, by Christopher Glazek. For all the statistics it recites, it doesn’t explicitly grapple with any of the leading experts on the topics of crime, punishment, and mass incarceration or discuss their research; nor does it (on my reading) accurately describe the recent state-level reforms with which I’m most familiar (those in California), which leads me to wonder whether its other sections are accurate. To take the section in which Glazek discusses California, point-by-point:

On May 23, 2011—the same day the morning papers rejoiced over another year of crime reduction—the Supreme Court ordered the State of California to release 45,000 prisoners. In a 5-to-4 decision written by Anthony Kennedy, the Court declared that overcrowding in the state’s penitentiaries had become so severe that simply existing in the system violated a prisoner’s Eighth Amendment right of freedom from cruel and unusual punishment.

The Court did not “order[] the State of California to release 45,000 prisoners” — it upheld a lower court order to reduce the prison population down to 137.5% of design capacity, which could be achieved however the state decided, for instance by forward-looking sentencing and parole reforms. The state was not ordered to simply release 45,000 prisoners, and indeed has not done so. And in fact California’s prison population was already declining prior to the Supreme Court decision, so that 45,000 estimate was a moving target; a more recent estimate suggests the overage in the prison system was more like 30,000 prisoners. (See here for more.)

As a news story, the ruling generated surprisingly little attention—a good deal less than the Court’s 2008 decision banning the death penalty for child rapists— but in legal circles it caused a panic. Antonin Scalia, in a fiery dissent, called it “the most radical injunction issued by a court in our nation’s history.” Samuel Alito predicted the ruling would generate a “grim roster of victims,” anxiously noting that the quantity of prisoners mandated for release added up to “two army battalions.” In the early ’90s, Alito pointed out, a similar order issued by a federal judge in Philadelphia liberated some 10,000 prisoners: within 18 months, 2,748 of the prisoners had been rearrested for theft, 2,215 for drugs, 1,113 for assault, 959 for robbery, 751 for burglary, 90 for rape, and 79 for murder. California, Alito suggested, should gear up for an enemy invasion.

The Plata decision did not, so far as I know, “cause[] a panic” “in legal circles” (though I admit I’m not entirely sure who the author means by “legal circles”). It’s telling that the author only cites, well, the dissents in Plata to substantiate this claim. Yes, the decision did cause an apparent panic among Alito and Scalia, but I’m not sure why they are uniquely representative of “legal circles” considering that five of their fellow members of the Supreme Court ruled against them. If anything, most lawyers probably understood the decision to be a unique response to California’s uniquely long-standing and intractable prison conditions litigation, and not a decision that would cause many ripples outside of California. Now, the decision (or more specifically, the state’s response to the decision, a policy known as “realignment”) did cause something of a panic, or anyway a turn to fearmongering rhetoric, among California law enforcement officials, but that’s not mentioned here. In other words, this claim of a “panic” in response to Plata could have been more precisely worded and better substantiated, particularly if the author had provided and analyzed evidence beyond the text of the Plata decision itself, and not used vague terms like “in legal circles.”

…

Within three years, 70 percent of released prisoners are rearrested, and half are back in prison. A large portion of these “recidivists” haven’t committed new felonies—they’ve simply violated the terms of their parole. California, which is especially adept at throwing parole violators back in prison, ends up reincarcerating two thirds of released prisoners within three years.

Of course, many released prisoners do commit new felonies, and the evidence is clear that releasing prisoners raises the crime rate, just as imprisoning criminals lowers it. …

The prospects for California’s released prisoners, therefore, are not good. Neither are the prospects for the state. The likelihood is high that most of these released prisoners will be back in jail within three years, and California may very well be back in court for overcrowding its prisons. (The state is hoping to preempt the issue by transferring inmates to county jails in lieu of early release, but it isn’t clear that crowded jails are any more likely to survive judicial scrutiny than crowded prisons.) To reduce its prison population, California will have to do more than release prisoners—it will have to stop creating new ones.

This is an odd set of paragraphs. As the author indicates, a large part of why California historically had such high rates of recidivism is that its pre-2011 laws returned people to prison for technical parole violations, not just new crimes. Well, those parole violators can no longer be sent to state prison under the state’s 2011 realignment law. (Jonathan Simon explains here.) So, already, the state has taken steps “to stop creating new [prisoners].” It’s also nonsensical (on my reading) to speak of the likelihood that “most of these released prisoners will be back in jail” since, again, there is no such coherent group as “these released prisoners.” As I noted above, California is not “releas[ing] prisoners” pursuant to Plata. (To be sure, California’s always releasing lots of prisoners, because every month thousands of prisoners are finishing up their sentences; but that’s not because of Plata. The state has chosen to respond to Plata with prospective changes to its sentencing and parole laws, not early releases of current prisoners. Maybe this is all what the author meant to be talking about, but to me the way it’s all phrased is muddled and misleading, as if there were some discrete group of prisoners released “early” solely because of the Plata decision.)

Nor, as the author describes it, is the state “transferring inmates to county jails in lieu of early release” — again, no one is getting “early release” because of Plata, so no one can get transferred to county jail in lieu of that. Rather, the realignment policy means that as of October 2011, people convicted from now on of certain low-level felonies — not people already in prison before October 2011 — will now be punished at the county level, whether by a county jail term or whatever alternative sanction the county comes up with. These are not state prisoners being transferred to county jails, because they were never state prisoners.

Here is an op-ed by Joan Petersilia, probably the world’s leading expert on the California prison and parole systems, that explained the realignment policy around the time it passed. As Petersilia explained:

No inmates currently in state prison will be released early. All felons sent to state prison will continue to serve their entire sentence. All felons who are convicted of a serious or violent offense – including sex offenders and child molesters – will go to state prison. Felons who are not eligible for state prison can serve their sentences at the local level.

[note: made some slight edits and to add some links after prematurely hitting “publish”]